Putra v Minister for Immigration
[2011] FMCA 498
•13 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PUTRA v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 498 |
| MIGRATION – Migration Review Tribunal – application for judicial review – non-payment of prescribed fee at time of filing application with Tribunal for review of delegate’s decision – expiry of time limit to make payment of prescribed fee or apply for fee waiver – reliance on information from Tribunal that time limit not yet expired – statutory requirements – whether jurisdictional error. |
| Migration Act 1958 (Cth), ss.338(2), 347(1), 486A, 494C(4)(a) Migration Regulations 1994 (Cth), reg.4.10(1)(a) |
| Applicant S298/2003 v Minister for Immigration & Citizenship (2007) 99 ALD 25; [2007] FCA 1793 Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364; [2001] FCA 318 Khan v Minister for Immigration and Citizenship [2009] FCA 443 Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Plaintiff M13-2011 v Minister for Immigration and Citizenship [2011] HCA 23 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 Singh v Minister for Immigration and Citizenship (2001) 190 FCR 552; [2001] FCAFC 27 SZAPT v Minister for Immigration and Citizenship [2010] FCA 75 |
| Applicant: | I GUSTI NGURAH AGUS ARISTA PUTRA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 60 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 30 June 2011 |
| Date of Last Submission: | 30 June 2011 |
| Delivered at: | Perth |
| Delivered on: | 13 July 2011 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr A Gerrard |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| For the Second Respondent: | Submitting appearance, save as to costs. |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 60 of 2011
| I GUSTI NGURAH AGUS ARISTA PUTRA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case involves:
a)an application to review the refusal to grant a Child (Residence) (Class BT) visa to a young Indonesian student;
b)the provision of erroneous advice by a Tribunal officer as to the last date for payment of the prescribed fee that must accompany a review application; and
c)the jurisdiction of the Tribunal to review the application in circumstances where the applicant has relied on the misinformation concerning fee payment to his detriment.
Factual background
On 17 March 2010 the applicant, Mr Putra, applied for a Child (Residence) (Class BT) visa.[1] The application was prepared with the assistance of Matthew Rumley, a migration agent with Migration and Education Consultants Australia.[2]
[1] Court Book (“CB”) 1-16.
[2] CB 14.
On 28 October 2010 the application was refused by a delegate of the first respondent.[3]
[3] CB 98-113 (“Delegate’s Decision”).
On Friday 26 November 2010, Mr Putra’s application for review of the Delegate’s Decision was faxed to the Migration Review Tribunal.[4] However, no application fee was paid, nor was an application made for the fee to be waived at this time.[5]
[4] CB 114-121 (“Tribunal”).
[5] CB 130, being a Review Application Receipt for a total received of “$0.00”.
At approximately 4:00pm EST on Monday 29 November 2010, being the applicant’s last day to either pay the fee or apply for a fee waiver, a Tribunal officer unsuccessfully attempted to telephone Mr Putra’s representative on both his office landline and mobile.[6] The Tribunal officer left a voicemail message requesting that the representative call the Tribunal to provide payment details for the application.[7] Furthermore, the message incorrectly advised that Wednesday
29 December 2010 was the final day for making payment.[8] In fact, the correct final day for making payment was Monday 29 November 2010.
[6] CB 183.
[7] CB 141.
[8] CB 183.
Immediately after, at 4:01pm EST on Monday 29 November 2010, the Tribunal officer sent Mr Putra’s representative a fax in relation to the payment of the fee, but once again, the deadline for making payment was misstated.[9] The facsimile read as follows:
[9] CB 131-132.
MR I GUSTI NGURAH AGUS ARISTA PUTRA
RE: ACKNOWLEDGEMENT OF APPLICATIONPLEASE NOTE:
PAYMENT OF THE $1400 REVIEW APPLICATION HAS NOT BEEN RECEIVED.
PLEASE CONTACT THE MRT TO PROVIDE PAYMENT DETAILS AS SOON AS POSSIBLE, IN ORDER FOR THE APPLICATION TO BE VALID.
THE LAST DAY FOR PAYMENT IS WEDNESDAY 29th DECEMBER 2010.[10]
[10] CB 131.
Just over half an hour later at 4:32pm EST on Monday 29 November 2010, the Tribunal officer again telephoned Mr Putra’s representative and left a second voicemail message containing further erroneous information.[11]
His case note of that message states:[11] CB 142.
Regarding the previous case note (message left for Rep. on his mobile) & cover letter on the Acknowledgement of Application,
I advised that the last day for payment was Wednesday 29/12/2010. I sourced this date from the date calculation that was generated at the time of Receipt of the case.
The date calculation was in fact incorrect: it stated the date of the DIAC letter to be 28/11/2010, rather than 28/10/10. I generated a new date calculation, which shows the last day to lodge/ payment to be received as Tuesday (sic) 29/11/2010.
I called the Rep., Mr Rumley, and left a message on his mobile.
I advised that the previous last day for payment that I provided was incorrect, and that the payment is urgently required as the correct last day for the payment to be received is tomorrow (sic) (29/11/2010).
I provided the MRT fax number as well, stating he could fax his credit card details to make the payment.
I also requested that he call the MRT, and advised the business hours for the MRT in Victorian time.[12]
[12] CB 142.
The erroneous information related to the day and date for lodgement of a waiver application or payment of the fee, which was in fact required that same day, being Monday, 29 November 2010, and not “Tuesday 29/11/2010” or “tomorrow (29/11/2010)” as set out in the case note of the voicemail.
On 30 November 2010, Mr Putra’s representative faxed a letter with attachments to the Tribunal attaching a request for the application fee to be waived.[13] The application for a fee waiver[14] was signed by
Mr Putra and dated 30 November 2010.[15]
[13] CB 143-162.
[14] CB 146-153.
[15] CB 153.
The Tribunal formed the preliminary view that it did not have jurisdiction because the fee waiver application was not received within the prescribed period for lodgement.[16] On 5 January 2011, the Tribunal wrote to Mr Putra inviting submissions on this issue.[17] Relevantly, the letter stated the following:
To be a valid application, the Tribunal needs to receive either payment of the application fee, or a fee waiver application within time. No payment of the fee has been received, and I am of the view that your application is not a valid application as the fee waiver was not lodged within the relevant time limit. The time limit is
21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was posted to your authorised recipient on 29 October 2010 and, on the basis that 8 November 2010 was the date on which you are taken to have been notified, the last day for lodging a valid application for review was 29 November 2010. As the fee waiver application was not received until 30 November 2010, it appears to be out of time. However, this is a matter which must be determined by a Tribunal Member.[18][16] CB 183.
[17] CB 165-167.
[18] CB 167.
In response to this invitation for submissions, the Tribunal received correspondence from Mr Putra’s representative on 18 January 2011, which stated as follows:
I refer to a phone call received from a David representing the Migration Review Tribunal on the 29th December 2010 (sic) at 1.21 pm to my mobile phone 0414198775.
In this phone message David notified me that there had been an administration error on the date calculation and specified that the last day to lodge payment or a fee waiver was on the 30th of December, 2010 (sic). I have kept a copy of this recorded voicemail message which can be forwarded to the MRT upon request.
My client was in fact ready to lodge a fee waiver on the
29th January [2011] (sic). However once I received this message my client advised that he would be able to provide additional supporting documentation the following day and on the knowledge that my client had until the 30th of January [2011] (sic) to lodge the application I decided to wait [a]n additional day to lodge a complete application via fax.
I feel that my client has acted in accordance with instructions received from the Migration Review Tribunal and if indeed there has been an additional calculation error I request compassion be granted to my client on the basis that Mr. I Gusti Ngurah Agus Arista Putra was following advice from the MRT directly.[19]
[19] CB 170.
The correspondence from Mr Putra’s representative contained erroneous information as the call from the officer of the Tribunal had been on 29 November 2010, not 29 December 2010, but the Tribunal officer’s call had specified 29 December 2010, not 30 December 2010, as the date for lodgement of a fee waiver application or payment of the fee, when the correct date for the application or payment was
29 November 2010. The references by Mr Putra’s representative to preparedness to lodge the fee waiver application on 29 January 2011 and actual lodgement on 30 January 2011 are also erroneous, as the correct dates were 29 and 30 November 2010 respectively.
Tribunal Decision
On 10 February 2011 the Tribunal determined that it did not have jurisdiction to review the application.[20] The Tribunal’s findings and reasons were as follows:
[20] CB 182-186 (“Tribunal Decision”).
21.The Tribunal finds that the applicant is seeking review of an MRT-reviewable decision covered by s.338(2) and that the applicable prescribed period is 21 days, starting when the applicant was validly notified of the decision in accordance with the Act: s.347(1)(b)(i) and r.4.10(1)(a).
22.The Tribunal is satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2).
23.The material before the Tribunal indicates that the applicant gave the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice, dated 28 October 2010, was sent by prepaid post on 29 October 2010 from a place in Australia to the applicant’s authorised recipient at an address in Australia.
24.The Tribunal finds that the decision notice was dispatched within 3 working days of the date of the letter to the correct address, in accordance with s.66(1) and s.494B(4) and 494D. Therefore, the applicant is taken to have received the notice on 8 November 2010, being 7 working days after the date of the notice.
25.The Representative stated that he received a message on
29 December 2010 stating that he had until 30 December 2010. He said the client was ready to lodge the fee waiver on 29 January and would have additional supporting documents ready the following day. In light of the received advice that they had until “30 January”, they delayed lodging the fee waiver by 1 day. The Representative stated that in light of his client acting on the instructions of the Tribunal, the Tribunal should grant compassion to his client and accept the application.
26.However, the Tribunal has no discretion to grant an extension of time for the payment of the fee or an application for a fee waiver, regardless of the circumstances, including when incorrect information is provided by the Tribunal.
27.The Tribunal finds that the applicant was properly notified of the delegate’s decision and is taken to have been notified on 8 November 2010. Therefore, the prescribed period of
21 days within which the application for review could be lodged ended on 29 November 2010.
28.The application for a fee waiver was not received by the Tribunal until 30 November 2010, after the prescribed period had expired.
29.For these reasons, the application for review was not valid and the Tribunal has no jurisdiction in this matter.[21]
[21] CB 185-186.
Grounds of application for judicial review by this Court
The poorly expressed grounds of application for judicial review by this Court are as follows:
1. Time limit calculation error by Migration Review Tribunal.
2. Misleading and contradicting correspondence by MRT.
In support of his application for judicial review, Mr Putra has filed an affidavit including a statement explaining how his reliance on the Tribunal officer’s erroneous advice lead to the late lodgement of his fee waiver application on 30 November 2010.[22]
[22] Mr Putra’s Affidavit, sworn 8 March 2011, at para.8.
Jurisdictional error
A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[23] Further, an error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks a wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[24]
[23] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[24] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
Applicant’s submissions
The applicant submits that:
a)“a ‘wrong issue’ has been identified by means of a calculation error” by the Tribunal officer;
b)incorrect advice regarding the deadline for lodgement of a fee waiver application, or the payment of the prescribed fee, constitutes a jurisdictional error;
c)a fee waiver application was lodged on 30 November 2010, in reliance on information provided by the Tribunal officer;
d)incorrect or misleading statements by the Tribunal may lead to jurisdictional error in some situations;[25] and
e)the recent case of Plaintiff M13-2011 v Minister for Immigration and Citizenship[26] provides that in certain circumstances and in the interests of the administration of justice, a plaintiff should be granted an extension of time to institute proceedings.
[25] Applicant S298/2003 v Minister for Immigration and Citizenship & Anor (2007) 99 ALD 25; [2007] FCA 1793 (“Applicant S298/2003”).
[26] [2011] HCA 23 (“M13-2011”).
First respondent’s submissions
The first respondent submits that:
a)the Tribunal’s decision does not display any jurisdictional error;
b)the Tribunal does not have jurisdiction where the prescribed fee is not paid within the prescribed period,[27] even if the failure to pay arises through no fault of the applicant;[28]
c)where a fee waiver request is lodged within the prescribed period, the application for review is valid so long as the fee is either waived or paid within a reasonable time after the request has been refused;[29]
d)the representation by the Tribunal that Mr Putra had an additional day to lodge his application is unfortunate but neither officers of the Department, nor the Tribunal, have any legal authority to vary the statutory timetable;[30]
e)even where incorrect advice is given by a Tribunal officer to the detriment of an applicant, the Tribunal can still be correct to rule that it is functus officio and unable to reopen the case;[31] and
f)whilst incorrect or misleading statements by the Tribunal may lead to jurisdictional error in some situations,[32] this cannot be the case where the Tribunal is bound by a legislative timetable it has no power to vary.
[27] Kirk vMinister for Immigration and Multicultural Affairs (1998) 87 FCR 99 (“Kirk”).
[28] Kirk; Khan v Minister for Immigration and Citizenship [2009] FCA 443 (“Khan”).
[29] Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364; [2001] FCA 318 (“Braganza”).
[30] Singh v Minister for Immigration & Citizenship (2011) 190 FCR 552 at 566 per Keane CJ, Collier and Logan JJ; [2011] FCAFC 27 at paras.48-49 per Keane CJ, Collier and Logan JJ (“Singh”).
[31] SZAPT v Minister for Immigration & Citizenship [2010] FCA 75 (“SZAPT”).
[32] Applicant S298/2003.
Statutory scheme
Section 347(1) of the Migration Act1958 (Cth)[33] provides that an application for a Tribunal-reviewable decision must:
a)be made in the approved form;
b)be given to the Tribunal within the prescribed period; and
c)be accompanied by the prescribed fee (if any).
[33] “Migration Act”.
Section 338(2) of the Migration Act establishes that a decision to refuse to grant a Child (Residence) (Class BT) visa is a decision which is reviewable by the Tribunal.
Section 494C(4)(a) of the Migration Act provides that where a person receives notification of a visa refusal decision by prepaid post, both despatched from and received within Australia, the applicant is taken to have received the notification seven working days after the date of the document.
Regulation 4.10(1)(a) of the Migration Regulations 1994[34] provides that the Tribunal must receive an application for review before the end of 21 days after the day on which the applicant receives notice of the Tribunal-reviewable decision mentioned in s338(2) of the Migration Act.
[34] “Migration Regulations”.
Consideration
The Delegate’s Decision was dated 28 October 2010.[35]
[35] CB 98-113.
Mr Putra is deemed to have received notice of the Delegate’s Decision on 8 November 2010, being seven working days after 28 October 2010.[36]
[36] Migration Act, s.494C(4)(a).
An application for review of the Delegate’s Decision had to be filed before the end of 29 November 2010, being 21 days after the deemed date of notification of 8 November 2010.[37]
[37] Migration Regulations, reg.4.10(1)(a).
Mr Putra’s application for review of the Delegate’s Decision was lodged on 26 November 2010, in the approved form and within the prescribed period, but not accompanied by the prescribed fee.[38]
[38] Migration Act, s.347(1).
In order to invoke the Tribunal’s jurisdiction, an application to review the Delegate’s Decision must comply with s347(1) of the Migration Act.[39] This requires the application to be in the approved form, lodged within the prescribed period, and accompanied by the prescribed fee.[40] The requirement that an application for review be accompanied by the prescribed fee within the prescribed period is a mandatory provision requiring strict compliance.[41] Where an application fee has not been paid nor waived, the application for review is not valid and the Tribunal lacks jurisdiction.[42] Thus, where attempts are made to pay the prescribed fee within the prescribed period but, for example, the cheque is dishonoured,[43] or the credit card transaction is declined,[44] the Court has held the application to be invalid. Consequently, the Tribunal’s jurisdiction is not able to be invoked without valid payment of the prescribed fee. In the present proceedings, no attempt was made to address the prescribed fee until after the prescribed period had already lapsed. This creates even greater difficulty invoking the jurisdiction of the Tribunal.
[39] Khan at para.17 per Besanko J.
[40] Migration Act, s.347(1).
[41] Kirk at 102 per Lehane J.
[42] Khan.
[43] Kirk.
[44] Khan.
The Tribunal is not, however, deprived of jurisdiction merely because the prescribed fee has not been paid within the prescribed period.[45] Where a fee waiver request is made within the prescribed period, the Tribunal still has jurisdiction provided the fee is either waived, or paid within a reasonable time following the rejection of the fee waiver application.[46] Importantly, the Tribunal’s power to waive the prescribed fee can only be exercised within the prescribed period.[47] As Mr Putra failed to lodge his fee waiver request within the prescribed period, the Tribunal was unable to exercise its power to waive the prescribed fee. Consequently, the Tribunal was without jurisdiction to review
Mr Putra’s application.
[45] Braganza.
[46] Braganza FCR at 375 per Wilcox, Weinberg and Stone JJ; FCA at para.51 per Wilcox, Weinberg and Stone JJ.
[47] Kirk at 102 per Lehane J.
Mr Putra argues that his fee waiver request was lodged after the prescribed period as a result of his reliance on the Tribunal’s erroneous information. However, incorrect advice by the Tribunal will only be relevant to the extent that it leads to jurisdictional error.
In SZAPT the applicant was incorrectly advised by a Tribunal officer. The Tribunal officer attempted to correct the error within a very short period but was unable to get in contact with the applicant.[48]
The Federal Court concluded that whilst the provision of incorrect advice was unfortunate, the Tribunal was correct to determine that it could not reopen the case.[49]
[48] SZAPT at para.24 per Tracey J.
[49] SZAPT at para.24 per Tracey J.
SZAPT is not directly on point as the incorrect advice there related to the applicant’s ability to submit further documentation to support an application that had already been considered and decided by the Tribunal. In Mr Putra’s case, the incorrect advice influenced whether his application was reviewed in the first place. Nevertheless, SZAPT still highlights that the provision of incorrect advice from a Tribunal officer does not necessarily constitute jurisdictional error.
In contrast, jurisdictional error was found in Applicant S298/2003 where the Tribunal incorrectly advised an applicant about the significance of an original document, as opposed to a photocopy, being tendered to support an application for review.[50] Significantly, however, the Federal Court concluded that:
Not every statement made by the tribunal to an applicant which is factually incorrect or may mislead will give rise to a finding that the tribunal has fallen into jurisdictional error. The statement or representation must give rise to unfairness in the sense that the applicant was denied a fair hearing…[51]
[50] Applicant S298/2003 ALD at 27-28 per Lander J; FCA at paras.16-17, 20 and 23 per Lander J.
[51] Applicant S298/2003 ALD at 31 per Lander J; FCA at para.50 per Lander J.
Applicant S298/2003 is distinguishable from Mr Putra’s case because it did not pertain to a statutory timeframe.
That is significant because neither Tribunal officers nor delegates of the Minister have the authority to alter the statutory timeframe for seeking review, even in circumstances where an applicant relies, to their detriment, upon incorrect advice regarding the deadline for seeking review.
The Federal Court in Singh stated unequivocally that:
Parliament has made it quite clear that the rights of review conferred on the appellants were to be exercised within a short time frame. This time frame may not be extended by officers of the executive government, the Tribunal or the courts.[52]
[52] Singh FCR at 566 per Keane CJ, Collier and Logan JJ; FCAFC at para.49 per Keane CJ, Collier and Logan JJ.
Ultimately, the responsibility for paying the fee, or making a fee waiver application, within time, lay with Mr Putra or his representative, and that responsibility was not fulfilled. There were a series of basic errors on the part of the Tribunal officers concerning the date for payment of the fee or the making of the fee waiver application. However, incorrect advice from a Tribunal officer cannot supplant the law.[53] The law requires the prescribed fee to be paid, or the fee waiver application to be made, within the prescribed period. As this requirement was not satisfied, Mr Putra’s application for review was invalid, and consequently, the Tribunal was without jurisdiction.
[53] Kirk at 103 per Lehane J.
Mr Putra referred to the recent High Court judgment in M13-2011.
M13-2011 related to an application for an extension of time to bring an application before the High Court under s.486A(1) of the Migration Act. Section 486A(2) contains express provision for an extension of time where the interests of justice so require. The relevant statutory provisions in relation to Mr Putra’s application contain no provisions permitting the Tribunal, or this Court on a judicial review application, to extend the time for the making of Mr Putra’s fee waiver application. M13-2011 is therefore distinguishable, and of no assistance to Mr Putra.
Conclusion
The Tribunal Decision involves no jurisdictional error. Accordingly, the application will be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 13 July 2011